Whitmore v. Arkansas/Dissent Marshall
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.
The Court today allows a State to execute a man even though no appellate court has reviewed the validity of his conviction or sentence. In reaching this result, the Court does not address the constitutional claim presented by petitioner: whether a State must provide appellate review in a capital case despite the defendant's desire to waive such review. Rather, it decides that petitioner does not have standing to raise that issue before this Court. The Court rejects petitioner's argument that he should be allowed to proceed as Ronald Gene Simmons' "next friend," relying on the federal common-law doctrine that a competent defendant's waiver of his right to appeal precludes another person from appealing on his behalf. If petitioner's constitutional claim is meritorious, however, Simmons' execution violates the Eighth Amendment. The Court would thus permit an unconstitutional execution on the basis of a common-law doctrine that the Court has the power to amend.
Given the extraordinary circumstances of this case, then, consideration of whether federal common law precludes Jonas Whitmore's standing as Ronald Simmons' next friend should be informed by a consideration of the merits of Whitmore's claim. For the reasons discussed herein, the Constitution requires that States provide appellate review of capital cases notwithstanding a defendant's desire to waive such review. To prevent Simmons' unconstitutional execution, the Court should relax the common-law restriction on next-friend standing and permit Whitmore to present the merits question on Simmons' behalf. By refusing to address that question, the Court needlessly abdicates its grave responsibility to ensure that no person is wrongly executed. I dissent.
* This Court has held that the Constitution does not require States to provide appellate review of noncapital criminal cases. Ross v. Moffitt, 417 U.S. 600, 611, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974) (citing McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 914-15, 38 L.Ed. 867 (1894)). It is by now axiomatic, however, that the unique, irrevocable nature of the death penalty necessitates safeguards not required for other punishments.
"Under the Eighth Amendment, the death penalty has been treated differently from all other punishments. Among the most important and consistent themes in this Court's death penalty jurisprudence is the need for special care and deliberation in decisions that may lead to the imposition of that sanction. The Court has accordingly imposed a series of unique substantive and procedural restrictions designed to ensure that capital punishment is not imposed without the serious and calm reflection that ought to precede any decision of such gravity and finality." Thompson v. Oklahoma, 487 U.S. 815, 856, 108 S.Ct. 2687, 2710, 101 L.Ed.2d 702 (1988) (O'CONNOR, J., concurring in judgment) (citation omitted).
See also Zant v. Stephens, 462 U.S. 862, 884, 103 S.Ct. 2733, 2746-47, 77 L.Ed.2d 235 (1983) ("[B]ecause there is a qualitative difference between death and any other permissible form of punishment, 'there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case' ") (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion)); Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S.Ct. 869, 878-79, 71 L.Ed.2d 1 (1982) (O'CONNOR, J., concurring) ("[T]his Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake").
This Court has consistently recognized the crucial role of appellate review in ensuring that the death penalty is not imposed arbitrarily or capriciously. In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court upheld Georgia's capital sentencing scheme in large part because the statute required appellate review of every death sentence.
"As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the State's Supreme Court. That court is required by statute to review each sentence of death and determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury's finding of a statutory aggravating circumstance, and whether the sentence is disproportionate compared to those sentences imposed in similar cases." Id., at 198, 96 S.Ct., at 2937 (joint opinion of Stewart, Powell, and STEVENS, JJ.).
See also id., at 211, 96 S.Ct., at 2942-43 (WHITE, J., joined by BURGER, C.J., and REHNQUIST, J., concurring in judgment) ("An important aspect of the new Georgia legislative scheme . . . is its provision for appellate review . . . in every case in which the death penalty is imposed"). The provision of automatic appellate review was also a significant factor in the Court's decisions that same Term upholding the capital sentencing schemes of Florida and Texas. See Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) (risk of arbitrary or capricious infliction of death penalty "is minimized by Florida's appellate review system, under which the evidence of the aggravating and mitigating circumstances is reviewed and reweighed by the Supreme Court of Florida 'to determine independently whether the imposition of the ultimate penalty is warranted' ") (citation omitted); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) ("By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law"). More recently, in Zant v. Stephens, supra, the Court stressed that its decision to uphold the Georgia death penalty statute "depend[ed] in part on the existence of an important procedural safeguard, the mandatory appellate review of each death sentence by the Georgia Supreme Court to avoid arbitrariness and to assure proportionality." 462 U.S., at 890, 103 S.Ct., at 2749. Accord, McCleskey v. Kemp, 481 U.S. 279, 303, 107 S.Ct. 1756, 1772, 95 L.Ed.2d 262 (1987). See also Clemons v. Mississippi, 494 U.S. 738, 749, 110 S.Ct. 1441, 1448, 108 L.Ed.2d 725 (1990) ("[T]his Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency").
The existence of mandatory appellate review was also a significant factor in the Court's decision upholding California's capital sentencing scheme in Pulley v. Harris, 465 U.S. 37, 53, 104 S.Ct. 871, 880-81, 79 L.Ed.2d 29 (1984). Moreover, although the Court held that the Constitution does not require appellate courts to engage in proportionality review, it nevertheless acknowledged that Gregg "suggested that some form of meaningful appellate review is required." Id., at 45, 104 S.Ct., at 877 (citing Gregg, supra, 428 U.S., at 153, 198, 204-206, 96 S.Ct., at 2909, 2936-37, 2939-2941 (joint opinion of Stewart, Powell, and STEVENS, JJ.)). See also Pulley, 465 U.S., at 49, 104 S.Ct., at 879 ("Gregg and Proffitt were focused not on proportionality review as such, but only on the provision of some sort of prompt and automatic appellate review"); id., at 54, 104 S.Ct., at 881 (STEVENS, J., concurring in part and concurring in judgment) (stating that this Court's precedents establish that "some form of meaningful appellate review is constitutionally required").
Thus, much of this Court's death penalty jurisprudence rests on the recognition that appellate review is a crucial means of promoting reliability and consistency in capital sentencing. The high percentage of capital cases reversed on appeal vividly demonstrates that appellate review is an indispensable safeguard. Since 1983, the Arkansas Supreme Court, on direct review, has reversed in 8 out of 19 cases in which the death penalty had been imposed. See Robertson v. State, 298 Ark. 131, 137, 765 S.W.2d 936, 940 (1989) (Hickman, J., concurring); Fretwell v. State, 289 Ark. 91, 99, 708 S.W.2d 630, 634-635 (1986) (Hickman, J., concurring). Other States also have remarkably high reversal rates in capital cases. See, e.g., Burt, Disorder in the Court: The Death Penalty and the Constitution, 85 Mich.L.Rev. 1741, 1792 (1987) (Florida Supreme Court set aside 47% of death sentences between 1972 and 1984); Dix, Appellate Review of the Decision to Impose Death, 68 Geo.L.J. 97, 144-145, and n. 437 (1979) (Texas Court of Criminal Appeals reversed conviction or invalidated death sentence in 33% of cases between October 1975 and March 1979); id., at 111, and n. 92 (Georgia Supreme Court did same in 30% of capital cases between April 1974 and March 1979). Cf. Barefoot v. Estelle, 463 U.S. 880, 915, 103 S.Ct. 3383, 3406, 77 L.Ed.2d 1090 (1983) (MARSHALL, J., dissenting) (between 1976 and 1983, approximately 70% of capital defendants who had been denied federal habeas relief in district courts prevailed in courts of appeals); Greenberg, Capital Punishment as a System, 91 Yale L.J. 908, 918 (1982) (estimating that 60% of convictions or sentences imposed under capital punishment statutes enacted after Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), were reversed at some point in postconviction appeals process; in contrast, federal criminal judgments in noncapital cases had a reversal rate of 6.5%); U.S. Dept. of Justice, Bureau of Justice Statistics, Bulletin, Capital Punishment 1988, p. 1 (July 1989) (116 of 296 death row inmates sent to prison in 1988 had sentences vacated or commuted during that year). These statistics make clear that in the absence of some form of appellate review, an unacceptably high percentage of criminal defendants would be wrongfully executed-"wrongfully" because they were innocent of the crime, undeserving of the severest punishment relative to similarly situated offenders, or denied essential procedural protections by the State. See Greenberg, supra, at 919-922 (listing numerous examples of death row inmates subsequently found to be not guilty and instances of capital convictions and sentences reversed for violations of federal or state law).
Our cases and state courts' experience with capital cases compel the conclusion that the Eighth and Fourteenth Amendments require appellate review of at least death sentences to prevent unjust executions. I believe the Constitution also mandates review of the underlying convictions. The core concern of all our death penalty decisions is that States take steps to ensure to the greatest extent possible that no person is wrongfully executed. A person is just as wrongfully executed when he is innocent of the crime or was improperly convicted as when he was erroneously sentenced to death. States therefore must provide review of both the convictions and sentences in death cases.
Appellate review is necessary not only to safeguard a defendant's right not to suffer cruel and unusual punishment but also to protect society's fundamental interest in ensuring that the coercive power of the State is not employed in a manner that shocks the community's conscience or undermines the integrity of our criminal justice system. See Gilmore v. Utah, 429 U.S. 1012, 1019, 97 S.Ct. 436, 440, 50 L.Ed.2d 632 (1976) (MARSHALL, J., dissenting). Because a wrongful execution is an affront to society as a whole, a person may not consent to being executed without appellate review. See id., at 1018, 97 S.Ct., at 439-40 (WHITE, J., dissenting) ("[T]he consent of a convicted defendant in a criminal case does not privilege a State to impose a punishment otherwise forbidden by the Eighth Amendment"). As the District Court stated so compellingly on review of the habeas petition filed on Simmons' behalf by Reverend Louis Franz and Darrel Wayne Hill: "What is at stake here is our collective right as a civilized people not to have cruel and unusual punishment inflicted in our name. It is because of the crying need to vindicate that right, that basic value, that Simmons should be held unable 'to waive resolution in state courts' of the correctness of his death sentence." Franz v. Lockhart, 700 F.Supp. 1005, 1024 (ED Ark.1988) (quoting Gilmore v. Utah, supra, 429 U.S., at 1018, 97 S.Ct., at 439-40 (WHITE, J., dissenting)) (citation omitted), appeal pending, No. 89-1485EA (CA8). See also, e.g., Commonwealth v. McKenna, 476 Pa. 428, 441, 383 A.2d 174, 181 (1978) ("The doctrine of waiver . . . was not . . . designed to block giving effect to a strong public interest, which itself is a jurisprudential concern[, or to] allo[w] a criminal defendant to choose his own sentence. . . . The waiver rule cannot be exalted to a position so lofty as to require this Court to blind itself to the real issue-the propriety of allowing the state to conduct an illegal execution of a citizen") (footnote omitted); People v. Stanworth, 71 Cal.2d 820, 834, 80 Cal.Rptr. 49, 59, 457 P.2d 889, 899 (1969) ("[W]e are not dealing with a right or privilege conferred by law upon the litigant for his sole personal benefit. We are concerned with a principle of fundamental public policy. The law cannot suffer the state's interest and concern in the observance and enforcement of this policy to be thwarted through the guise of waiver of a personal right by an individual") (internal quotation marks omitted; citation omitted).
A defendant's voluntary submission to a barbaric punishment does not ameliorate the harm that imposing such a punishment causes to our basic societal values and to the integrity of our system of justice. Certainly a defendant's consent to being drawn and quartered or burned at the stake would not license the State to exact such punishments. Nor could the State knowingly execute an innocent man merely because he refused to present a defense at trial and waived his right to appeal. Similarly, the State may not conduct an execution rendered unconstitutional by the lack of an appeal merely because the defendant agrees to that punishment.
This case thus does not involve a capital defendant's so-called "right to die." When a capital defendant seeks to circumvent procedures necessary to ensure the propriety of his conviction and sentence, he does not ask the State to permit him to take his own life. Rather, he invites the State to violate two of the most basic norms of a civilized society-that the State's penal authority be invoked only where necessary to serve the ends of justice, not the ends of a particular individual, and that punishment be imposed only where the State has adequate assurance that the punishment is justified. The Constitution forbids the State to accept that invitation.
Society's overwhelming interest in preventing wrongful executions is evidenced by the fact that almost all of the 37 States with the death penalty apparently have prescribed mandatory, nonwaivable appellate review of at least the sentence in capital cases. U.S. Dept. of Justice, Bureau of Justice Statistics, Bulletin, Capital Punishment 1988, p. 5 (July 1989); Carter, Maintaining Systemic Integrity in Capital Cases: The Use of Court-Appointed Counsel to Present Mitigating Evidence When the Defendant Advocates Death, 55 Tenn.L.Rev. 95, 113-114 (1987).  The Arkansas Supreme Court is the only state high court that has held that a competent capital defendant's waiver of his appeal precludes appellate review entirely. Franz v. State, 296 Ark. 181, 196-197, 754 S.W.2d 839, 847 (1988) (Glaze, J., concurring and dissenting). Furthermore, since the reinstitution of capital punishment in 1976, only one person, Gary Gilmore, has been executed without any appellate review of his case. See Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). Following Utah's execution of Gilmore, that State amended its law to provide for mandatory, nonwaivable appellate review. Utah Code Ann. § 77-35-26(10) (Supp.1989); see also Utah Code Ann. § 76-3-206(2) (1978). The extreme rarity of unreviewed executions in itself suggests the unconstitutionality of such killings. Cf. Enmund v. Florida, 458 U.S. 782, 788-796, 102 S.Ct. 3368, 3371-3376, 73 L.Ed.2d 1140 (1982) (finding unconstitutional Florida's death penalty for felony murder in part because only 8 of 36 jurisdictions authorized death for such a crime); Coker v. Georgia, 433 U.S. 584, 593-597, 97 S.Ct. 2861, 2866-2869, 53 L.Ed.2d 982 (1977) (striking down Georgia's provision for death penalty for rape of adult woman in part because Georgia was only State with such a provision).
This Court has recognized in other contexts that societal interests may justify limiting a competent person's ability to waive a constitutional protection. In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), for example, the Court upheld the constitutionality of Federal Rule of Criminal Procedure 23(a), which conditions a defendant's waiver of his right to a jury trial on the approval of the court and the prosecution. The Court reasoned that "[t]he Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result." 380 U.S., at 36, 85 S.Ct., at 790-91. Society's interest, expressed in the Eighth Amendment, of ensuring that punishments are neither cruel nor unusual similarly justifies restricting a defendant's ability to acquiesce in the infliction of wrongful punishment. Although death may, to some death row inmates, seem preferable to life in prison, society has the right, and indeed the obligation, to see that procedural safeguards are observed before the State takes a human life. 
Given that the Constitution requires mandatory, nonwaivable appellate review, the question remains whether Whitmore may seek relief in this Court on Simmons' behalf. This Court should take whatever measures are necessary, and within its power, to prevent Simmons' illegal execution. The common-law doctrine of next-friend standing provides a mechanism for doing so without exceeding the Article III limitations on our jurisdiction.  The Court's refusal to use that mechanism suggests that the Court's desire to eliminate delays in executions exceeds its solicitude for the Eighth Amendment.
As the Court acknowledges, a next friend pursues an action on behalf of the real party in interest. Ante, at 163. Simmons obviously satisfies the Article III and prudential standing requirements. The Court therefore does not dispute that Whitmore, standing in for Simmons, would also meet these requirements. The Court refuses to allow Whitmore to act as Simmons' next friend, however, because he has not shown that Simmons "is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability." Ante, at 165. The Court suggests, without holding, that a party asserting next-friend status must also prove that he is "truly dedicated to the best interests of the person on whose behalf he seeks to litigate," ante, at 163, and perhaps, too, that he has "some significant relationship with the real party in interest," ante, at 164. 
Assuming for the sake of argument that Simmons was competent to forgo petitioning this Court for review  and that Whitmore is only minimally interested in Simmons' welfare, I would nevertheless permit Whitmore to proceed as Simmons' next friend. The requirements for next-friend standing are creations of common law, not of the Constitution. Ante, at 164-165. Thus, no constitutional considerations impede the Court's deciding this case on the merits.  The Court certainly has the authority to expand or contract a common-law doctrine where necessary to serve an important judicial or societal interest. Examples of the Court's exercise of that authority pervade our case law. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 815-819, 102 S.Ct. 2727, 2736-2739, 73 L.Ed.2d 396 (1982) (abandoning subjective element of qualified immunity defense to avoid excessive disruption of government and to permit the resolution of insubstantial claims on summary judgment); Anderson v. Creighton, 483 U.S. 635, 645, 107 S.Ct. 3034, 3042, 97 L.Ed.2d 523 (1987) (stating that Harlow "completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action"); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326-333, 99 S.Ct. 645, 649-653, 58 L.Ed.2d 552 (1979) (discarding common-law doctrine of mutuality of parties and authorizing offensive use of collateral estoppel to protect litigants from burden of relitigating issues and to promote judicial economy). See also Livingston v. Jefferson, 15 F.Cas. 660, 663 (No. 8,411) (CC Va.1811) (Marshall, C.J., Circuit Judge) (common-law principle is "a principle of unwritten law, which is really human reason applied by courts, not capriciously, but in a regular train of decisions, to human affairs, according to the circumstances of the nation, the necessity of the times, and the general state of things, [and is] susceptible of modification"). In this case, the magnitude of the societal interests at stake justifies relaxing the next-friend requirements to permit Whitmore to challenge Simmons' execution.
Relaxation of those requirements is especially warranted here because judicial consideration of the claim that the Constitution requires appellate review of every capital case would otherwise be virtually impossible. If a capital defendant desires appellate review, he will undoubtedly obtain that review in state court, see n. 1, supra, and, perhaps, in federal court on a petition for habeas corpus. If he waives his right to appeal and is found incompetent, a next friend will be allowed to pursue the appeal, again obviating the need to decide whether the Eighth Amendment requires mandatory, nonwaivable review. Although the fact that a constitutional issue will never be resolved may not justify carving out an exception to Article III's standing requirements, surely that fact, when considered with society's commitment to avoiding wrongful executions, provides ample cause for enlarging the scope of a federal common-law doctrine.
The only purpose the Court invokes for rigidly applying the restrictions on next-friend standing is preventing " 'intruders or uninvited meddlers' " from pursuing habeas corpus relief " 'as matter of course.' " Ante, at 164 (quoting United States ex rel. Bryant v. Houston, 273 F. 915, 916 (CA2 1921)). This purpose, however, does not justify refusing to allow Whitmore to proceed as Simmons' next friend in this Court.  First, the Court need not hold that all federal courts must relax restrictions on next-friend standing; the common-law rules could be altered only to the extent this Court deems necessary. If this Court were to hold that Whitmore has standing before it, and then, on the merits, that the Constitution requires some form of nonwaivable appellate review in state court, at least one level of review would be assured for each capital case. Such a decision would obviate the need for relaxing the restrictions in federal district courts and courts of appeals. 
More fundamentally, however, the interest in preventing a suit by an "uninvited meddler" pales in comparison to society's interest in preventing an illegal execution. When, as here, allowing the "meddler" to press the condemned man's interests is the only means by which the Court can prevent an unconstitutional execution, the Court should sacrifice the common-law restrictions rather than the defendant's life.
The Court today refuses to address a meritorious constitutional claim by rigidly applying a technical common-law rule completely within its power to amend or suspend. It thereby permits States to violate the Constitution by executing willing defendants without requiring minimal assurance that their convictions were correct or their sentences justified. This decision thus continues the Court's unseemly effort to hasten executions at the cost of permitting constitutional violations to go unrectified. See, e.g., Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). I dissent.
^1 Thirteen States, by statute, rule, or case law, explicitly provide that review of at least the capital sentence will occur with or without the defendant's election or participation. Ala.Code § 12-22-150 (1986); Cal.Penal Code Ann. § 1239(b) (West Supp.1990); People v. Stanworth, 71 Cal.2d 820, 832-834, 80 Cal.Rptr. 49, 58-59, 457 P.2d 889, 898-899 (1969); Del.Code Ann., Tit. 11, § 4209(g) (1987); Goode v. State, 365 So.2d 381, 384 (Fla.1978) (construing Fla.Stat. § 921.141(4) (1989)); Ill.Rev.Stat., ch. 110A, ¶ 606(a) (1987); Judy v. State, 275 Ind. 145, 157-158, 416 N.E.2d 95, 102 (1981) (construing Ind.Code § 35-50-2-9 (1988)); Mo.Rev.Stat. § 565.035 (1986); Nev.Rev.Stat. § 177.055(2) (1989); Cole v. State, 101 Nev. 585, 590, 707 P.2d 545, 548 (1985); N.J.Stat.Ann. § 2C:11-3(e) (West Supp.1989); Commonwealth v. McKenna, 476 Pa. 428, 439-440, 383 A.2d 174, 181 (1978) (construing predecessor statute to 42 Pa.Cons.Stat. § 9711(h) (1988)); Tenn.Code Ann. § 39-2-205 (1982); State v. Holland, 777 P.2d 1019, 1022 (Utah 1989) (construing Utah Code Ann. § 77-35-26(10) (Supp.1989)); see also Utah Code Ann. § 76-3-206(2) (1978); Vt.Rule App.Proc. 3(b). Twenty-two States' statutes or rules employ language indicating that their appellate courts must review at least the sentence in every capital case. Ariz.Rule Crim.Proc. 31.2(b); Colo.Rev.Stat. § 16-11-103(7)(a) (Supp.1989); Conn.Gen.Stat. § 53a-46b (1985); Ga.Code Ann. § 17-10-35 (1982); Idaho Code § 19-2827 (1987); Ky.Rev.Stat.Ann. § 532.075 (Michie 1985); La.Code Crim.Proc.Ann., Art. 905.9 (West 1984); Md.Ann.Code, Art. 27, § 414 (1987); Miss.Code Ann. § 99-19-105 (Supp.1989); Mont.Code Ann. § 46-18-307 (1989); Neb.Rev.Stat. § 29-2525 (1989); N.H.Rev.Stat.Ann. § 630:5(VI) (1986); N.M.Stat.Ann. § 31-20A-4 (1987); N.C.Gen.Stat. § 15A-2000(d)(1) (1988); Okla.Stat., Tit. 21, § 701.13 (Supp.1989); Ore.Rev.Stat. § 163.150(1)(g) (1989); S.C.Code § 16-3-25 (1985); S.D.Codified Laws § 23A-27A-9 (1988); Tex.Crim.Proc.Code Ann. § 37.071(h) (Supp.1990); Va.Code § 17-110.1 (1988); Wash.Rev.Code § 10.95.100 (1989); Wyo.Stat. § 6-2-103 (1988). Ohio's rule as to waiver is unclear. See Ohio Rev.Code Ann. § 2929.05 (1987). In State v. Brooks, 25 Ohio St.3d 144, 495 N.E.2d 407 (1986), however, both the Ohio Court of Appeals and Ohio Supreme Court reviewed the defendant's death sentence after the State Court of Appeals denied his motion to withdraw his appeal.
^2 Underlying the Court's decision may be the assumption that a competent defendant would never waive his right to appeal unless he was guilty of the crime and deserved to die. See Franz v. Lockhart, 700 F.Supp. 1005, 1023 (ED Ark.1988), appeal pending, No. 89-1485EA (CA8). There is no reason to believe, however, that only defendants guilty of the most heinous crimes would choose death over life in prison.
^3 The question whether Whitmore may act as Simmons' next friend in this Court is distinct from the question whether Whitmore could do so in the Arkansas Supreme Court. This Court cannot impose federal standing restrictions, whether derived from Article III or federal common law, on state courts. See ASARCO Inc. v. Kadish, 490 U.S. 605, 620, 109 S.Ct. 2037, 2047, 104 L.Ed.2d 696 (1989); Department of Labor v. Triplett, 494 U.S. 715, 729, 110 S.Ct. 1428, ----, 108 L.Ed.2d 701 (1990) (MARSHALL, J., concurring in judgment). The Court's holding thus affects only federal courts.
^4 Despite the Court's suggestion, I cannot believe that this Court would ever hold that a defendant judged incompetent to waive his right to appeal could be executed without appellate review on the ground that no one with a sufficiently close relation to him had stepped forward to pursue the appeal. Rather, a court would be required to appoint someone to represent such a defendant. See Franz v. Lockhart, supra, at 1011, n. 2. See also Carter, Maintaining Systemic Integrity in Capital Cases: The Use of Court-Appointed Counsel to Present Mitigating Evidence When the Defendant Advocates Death, 55 Tenn.L.Rev. 95 (1987).
^5 In determining Simmons' competency to waive his right to seek relief in this Court, the majority relies on the Arkansas trial court's finding that Simmons was competent to waive his right to appeal in state court. Ante, at 165-166. At no point, however, has any court determined that Simmons was competent to waive his right to petition this Court for a writ of certiorari. Legal competency is not static. Given that Simmons' life turns on this question, the Court should at least require a specific determination that he was competent to forgo petitioning this Court before it dismisses this case without reaching the merits.
^6 The Court suggests that some restriction on next-friend standing is necessary to prevent a litigant who asserts only a generalized grievance from circumventing Article III's standing requirements. Ante, at 164. But as long as the real party in interest satisfies those standing requirements, as Simmons clearly does, this Court will be presented with an actual case or controversy. If the Court's suggestion were true, it would necessitate abolishing next-friend standing entirely. In terms of Article III, a next friend who represents the interests of an incompetent person with whom he has a significant relation is no different from a next friend who pursues a claim on behalf of a competent stranger; both rely wholly on the injury to the real party in interest to satisfy constitutional standing requirements.
^7 Appeal to stare decisis similarly cannot relieve the Court of responsibility for today's disturbing decision. This case is the first opportunity for this Court to address the next-friend issue raised here with the benefit of full briefing by the parties. Four times the Court was presented with this question in the context of applications for stays of executions filed by parties other than the defendants. Three times the Court denied the applications. See Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976); Evans v. Bennett, 440 U.S. 987, 99 S.Ct. 1986, 60 L.Ed.2d 370 (1979); Lenhard v. Wolff, 444 U.S. 807, 100 S.Ct. 29, 62 L.Ed.2d 20 (1979). In Gilmore, the Court stated only that the competent defendant had knowingly and intelligently waived any federal rights. 429 U.S., at 1013, 97 S.Ct., at 437. In Evans, then-Justice REHNQUIST, in his capacity as Circuit Justice, stayed the execution pending consideration by the full Court. 440 U.S. 1301, 99 S.Ct. 1481, 59 L.Ed.2d 756 (1979) (in chambers). The Court then denied the application without opinion, 440 U.S. 987, 99 S.Ct. 1986, 60 L.Ed.2d 370 (1979), with Justice BRENNAN noting in his concurrence that a stay was not necessary because the State had not set an execution date, ibid. In Lenhard, the Court did not issue an opinion. 444 U.S., at 807, 100 S.Ct., at 29. In Rosenberg v. United States, 346 U.S. 273, 73 S.Ct. 1152, 97 L.Ed. 1607 (1953), however, the Court did consider the merits of an application to stay the executions of Julius and Ethel Rosenberg filed by counsel for a man who had no connection to the Rosenbergs and who had not participated in any proceedings related to their case until the stay proceedings in this Court. Id., at 288-289, 73 S.Ct., at 1160-1161 (per curiam ); id., at 291, 73 S.Ct., at 1161-62 (Jackson, J., concurring) ("Edelman [the applicant] is a stranger to the Rosenbergs and to their case. His intervention was unauthorized by them and originally opposed by their counsel"). Justice Jackson's concurring opinion stated that the Court "discountenance[d] this practice" of considering an argument not originally pressed by the defendant's own counsel, where those counsel were vigorously contesting the defendants' death sentences. Id., at 292, 73 S.Ct., at 1162. Far more importantly, however, the Court did not dismiss the application on the ground that the applicant did not satisfy the common-law requirements of next-friend status,
but addressed the application on its merits. Id., at 289, 73 S.Ct., at 1160-61 (per curiam ). See also id., at 294, 73 S.Ct., at 1163 (Clark, J., concurring) ("Human lives are at stake; we need not turn this decision on fine points of procedure or a party's technical standing to claim relief"); id., at 299-300, 73 S.Ct., at 1165-1166 (Black, J., dissenting) ("I cannot believe . . . that if the sentence of a citizen to death is plainly illegal, this Court would allow that citizen to be executed on the grounds that his lawyers had 'waived' plain error. An illegal execution is no less illegal because a technical ground of 'waiver' is assigned to justify it"); id., at 312, 73 S.Ct., at 1172 (Douglas, J., dissenting) ("[T]he question of an unlawful sentence is never barred. No man or woman should go to death under an unlawful sentence merely because his lawyer failed to raise the point").
^8 The Court's decision today, which rests on federal common law developed in connection with habeas corpus cases, ante, at 164-165, apparently applies to next-friend standing in habeas cases brought in federal district court as well as to petitions for certiorari submitted to this Court. Congress could amend the habeas statute (which provides only that "[a]pplication for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf," 28 U.S.C. § 2242 (emphasis added)) explicitly to permit next-friend suits in cases of this sort so as to ensure some form of review of capital cases.